Mr C and Health Services Executive

Case Number: 170129

Whether the HSE has fulfilled the requirements of section 10 in relation to the applicant's application for a statement of reasons in respect of certain decisions made by the HSE in respect of funding paid to Rehabcare

Conducted in accordance with section 22(2) of the FOI Act by Ms Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 18 July 2016, the applicant made an FOI request to the HSE. The request contained three questions relating to payments made by the HSE to Rehabcare for services to be provided to the applicant's son. The first part of the request asked how the HSE continued to pay Rehabcare funding for a service that it knew Rehabcare was not providing; the second part asked when were these monies returned by Rehabcare and for evidence of the monies being returned; and the third part asked why the HSE continued to fund Rehabcare in light of the circumstances of the case. The HSE took part one and three of the request as a request for a statement of reasons under section 10 of the FOI Act, and part two as a request for records under section 12.

On 18 October 2016, four months after the applicant made his request, the HSE issued a decision purporting to provide the applicant with a statement of reasons in respect of its decision to stop payments to Rehabcare for services that the applicant's son was not receiving and its decision to recoup the monies paid from Rehabcare. The HSE also released a redacted copy of an Allocations Sheet which recorded the payments made to Rehabcare in respect of the applicant's son and which detailed the recoupment of the monies. On the 11 January 2017, the HSE wrote to the applicant providing some more information in relation to how payments were made to Rehabcare and how these monies were recouped. The HSE also corrected the total figure that was paid to Rehabcare in 2015-2016, in respect of services for his son.

The applicant sought an internal review on 16 January 2017, and the HSE varied its decision in relation to the first part of the applicant's request, in light of the further information provided on 11 January 2017, and affirmed its decision in relation to the other two parts of the request.

The applicant sought a review by this Office on 15 March 2017, in relation to the HSE's decision in respect of part one and part three of his request i.e the question of how the HSE continued to pay Rehabcare for a service that it knew Rehabcare was not providing, and the question of why the HSE continue to fund Rehabcare in light of the circumstances of the case.

From the outset of this review, the applicant stated that he had intended these aspects of his request to be treated as a request for records and not a request for a statement of reasons. On the 26 June 2017, Ms Lydia Buckley of this Office contacted the applicant and informed him that, based on the wording of his request, she was of the view that he was seeking an explanation as to why the HSE undertook certain actions in respect of funding paid to Rehabcare. In these circumstances, it was her view that the HSE appropriately processed his request as a request for a statement of reasons under section 10 of the FOI Act.

I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to correspondence between the applicant and the HSE, as set out above, and between this Office and both the applicant and the HSE.

Scope of Review

This review is concerned solely with the question of whether the HSE has complied with the provisions of section 10 of the FOI Act in relation to the applicant's request for a statement of reasons in respect of certain decisions made by the HSE in respect of funding paid to Rehabcare.

Analysis and Findings

Section 10 of the FOI Act provides that a person is entitled to a statement of reasons for an act of an FOI body where that person is affected by the act and has a material interest in a matter affected by the act or to which it relates. Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body if the act serves to confer a benefit on, or withhold a benefit from, the person without also conferring the benefit on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.

Section 10(13) defines a "benefit" in relation to a person as including: (a) any advantage to the person; (b) in respect of an act of an FOI body done at the request of the person, any consequence or effect thereof relating to the person, and (c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

The "act" in this case is the decision of the HSE to continue paying Rehabcare for a service after the applicant's son ceased receiving it. As the applicant's son had ceased receiving the service at the time, the decision to continue funding Rehabcare was not one which could serve to confer or withhold a benefit from the applicant or his son. Accordingly, the applicant does not have a material interest in the decision made by the HSE.

I find, therefore, that the applicant is not entitled to the statement of reasons sought under section 10 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, as amended, I hereby vary the decision of the HSE in this case and find that there was no obligation to provide a statement of reasons under section 10 of the Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.